PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           5 February 2002                   
	DOCKET NUMBER:   AR2001062248

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Roger W. Able		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that she be allowed to receive the Reserve Component Survivor Benefit Plan (RCSBP) annuity as the designated beneficiary of her deceased former spouse, a former service member (FSM).

3.  The applicant states that after the FSM died in 1993, knowing that she had been designated as the RCSBP beneficiary, she contacted the Kentucky Army National Guard (KYARNG) about filing a claim for the annuity.  The KYARNG told her that the FSM’s second spouse had already applied for it and she, the applicant, could get nothing by filing any claim.  She does not feel that a statute of limitations should apply since she was advised that she was not eligible for the annuity.

4.  The FSM’s military records show that he was born on 28 February 1943.  He enlisted in the ARNG on 8 June 1964.  He and the applicant married on 23 April 1966.  He and the applicant divorced on 29 August 1984.  Neither the divorce decree nor the related agreement mentioned the SBP.

5.  The FSM’s notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 31 August 1984.  It is date stamped 17 September 1984 and appears to have been received at the Office of the Adjutant General, Kentucky on that date.

6.  The FSM and his second wife married on 7 September 1984.

7.  On 3 December 1984, the FSM completed a Survivor Benefit Plan Election Certificate, DD Form 1883.  He checked that he was not married and elected RCSBP coverage for a person with insurable interest, naming the applicant as that person, full base amount, option C.

8.  The FSM was discharged from the ARNG on 13 August 1987 and transferred to the Retired Reserve.  He died on 27 May 1993.

9.  The FSM’s spouse, B___, had applied for the RCSBP annuity.  The RCSBP Board considered her case and ruled that the FSM’s DD Form 1883 was a valid election.  B___ then applied to this Board for the RCSBP annuity in 1995.  After considering the RCSBP Board’s ruling, this Board determined that the FSM’s election was valid in that he had the right to elect his former spouse as the beneficiary.  The only contention was whether the Government’s non-notification to B___ constituted a legal error.  The decision was that it did not as the Government did not know that the FSM was married and therefore should not be held liable for not notifying B___.  Further, the most the Government could have done in that case would have been to inform B___ of the FSM’s election.  

10.  The applicant, the former spouse, apparently was never made aware that B___’s claim for the RCSBP annuity was denied in her favor.

11.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A)  elect to decline enrollment and choose at age 60 whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.  A person who is not married and does not have a dependent child upon becoming eligible to participate in the SBP may elect to provide an annuity to a natural person with an insurable interest in the member.  Spousal conconcurrence with a failure to elect full spouse or spouse and child coverage was not required until 2001.

12.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses for retiring members.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).  Elections were made under the natural person with insurable interest cost provisions.  A person who was married or had a dependent child could elect to provide an annuity to a former spouse instead of providing an annuity to a spouse or dependent child if the election was made in order to carry out the terms of a written agreement entered into voluntarily with the former spouse (without regard to whether such agreement was included in or approved by a court order).  Any person making such an election would provide the Secretary concerned with a written statement, signed by such person and the former spouse setting forth whether the election was being made pursuant to a voluntary written agreement previously entered into by such person as part of or incident to a proceeding of divorce, dissolution, annulment, or legal separation, and if so, whether such voluntary written agreement had been incorporated in or ratified or approved by a court order.

13.  Title 10, U. S. Code, section 12738(a) states that after a person is granted retired pay or is notified in accordance with section 12731(d) of this title that the person has completed the years of service required for eligibility for retired pay under this chapter, the person’s eligibility for retired pay may not be denied.  Section 12731(d) states that the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay.  The notice shall be sent, in writing, to the person concerned within one year after the person completes that service.

CONCLUSIONS:

1.  It appears the RCSBP Board made an erroneous ruling in the case of B___, the FSM’s spouse at the time of his death.  The FSM was eligible to participate in the RCSBP when he was notified that he had completed the years of service required for eligibility for retired pay.  This date could have been no earlier than 17 September 1984.  He married B___ on 7 September 1984.  Since he was married on the date he was eligible to participate in the RCSBP, by law he could not have made a person with insurable interest election.  In addition, at that time he did not have the automatic right to elect former spouse coverage.  Certain requirements had to have been met.  They were not met in this case.  However, since it was clearly the FSM’s intent to provide for his former spouse, the applicant, and not B___, and since spousal concurrence with a failure to elect spouse coverage was not required at the time, there was no legal error or injustice in not granting B___ the RCSBP annuity.

2.  The Board concludes that as a matter of equity the applicant, the FSM’s former spouse, should be granted the RCSBP annuity.  It was Congress’s intent in establishing the SBP to provide for those spouses who supported the military member for the majority of his or her military career.  The applicant was married to the FSM for the majority of his military career.  

3.  In view of the foregoing, the FSM’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

     a.  amending the FSM’s 20-year letter to show it was date stamped on           1 September 1984;

     b.  amending the FSM’s DD Form 1883 to show it was completed on              2 September 1984, all other items remaining the same; and

     c.  by showing that the applicant applied for the RCSBP annuity on 1 July 1993.

2.  That the applicant be paid the RCSBP annuity retroactive to the FSM’s date of death on 27 May 1993.

BOARD VOTE:  

__jh____  __kak___  __rwa___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			June Hajjar
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001062248	
SUFFIX		
RECON		
DATE BOARDED	20020205	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.